Bequette v. Pittsburgh Plate Glass Company

• Decision Date: 07 January 1919
• Parties: RICHARD BEQUETTE, Respondent, v. PITTSBURGH PLATE GLASS COMPANY et al., Defendants, PITTSBURGH PLATE GLASS COMPANY, Appellant
• Court: Missouri Court of Appeals

207 S.W. 852

200 Mo.App. 506

RICHARD BEQUETTE, Respondent, v. PITTSBURGH PLATE GLASS COMPANY et al., Defendants, PITTSBURGH PLATE GLASS COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

January 7, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. James E. Withrow, Judge.

AFFIRMED.

Judgment affirmed.

Holland Rutledge & Lashly for appellant.

(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the testimony. (a) Because the respondent is conclusively bound by the allegations of his petition and cannot recover upon a theory different from that embodied in his petition and directly contrary to the allegations of his petition. State v Brooks, 99 Mo. 137; Chitty v. Railroad, 164 Mo 75; Hensler v. Stix, 108 Mo. 238; Mueller v. La Belle, 109 Mo.App. 506; Cheltz v. Railroad, 148 Mo. 64; Yarnell v. Railroad, 113 Mo. 570; Waldner v. Railroad, 71 Mo. 514; Melvin v Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572; Price v. Railroad, 72 Mo. 414; Standard Milling Co. v. Transit Co., 122 Mo. 277; Hite v. Railroad, 130 Mo. 136; Mason v. Railroad, 75 Mo.App. 10. (b) Because under the testimony of respondent's own witnesses he is not entitled to recover. (c) Because under the testimony respondent's foreman was in no better position to discover that the cable was not to be moved than was the respondent, and said foreman did not know and could not, by the exercise of ordinary care, have known that the said cable was about to be moved. Troth v. Norcross, 111 Mo. 634; Robinson v. St. Johnsbury Railroad Co., 88 Vt. 129. Respondent's foreman, while working on premises of a third person, was under no obligation to do more than a man of ordinary prudence would do, and was not bound to anticipate the unusual or unexpected, and particularly was not bound to anticipate negligence on the part of a third person. Miefert v. New Union Sand Co., American Brewing Ass'n v. Talbot, 141 Mo. 674; Fuchs v. City of St. Louis, 167 Mo. 620; Goodrich v. Railroad, 152 Mo. 222; Heysell v. Smith, 78 Mo.App. 39; Lohring v. Westlake Construction Co., 94 S.W. 747. Moreover, a custom, however well established, will not prevail as against the rights of the parties as established by law. Ober v. Carson's Exr., 62 Mo. 209; Kleekamp v. Meyer, 5 Mo.App. 444. (d) Because under the testimony the respondent and the rest of his crew were working within a few feet of each other, and if any warning had been given that his foreman could have heard, the plaintiff had the same opportunity to hear same. Both the plaintiff and his foreman had a right to rely upon the servants of the Sand Company's giving a warning and were not negligent in placing such reliance. Flori v. Dolph, 192 S.W. 948; Troth v. Norcross, 111 Mo. 634; Robinson v. St. Johnsbury Railroad Co., 88 Vt. 129. (e) Even if the testimony had shown that respondent's foreman received a warning and failed to transmit it, such failure on his part, if it constituted negligence, would not be negligence on the part of the vice-principal, but negligence on the part of a fellow servant. Rogers v. Schuele, 148 Mo.App. 52; English v. Shoe Co., 145 Mo.App. 439; Dickinson v. Jenkins, 144 Mo.App. 132; Fluman v. Bemis Bros., 141 S.W. 481. (2) The court erred in allowing respondent's witness John Keevin to testify, over the objection of the appellant, that when the section crew in question were working in the yards of the Pittsburgh Plate Glass Company, it was the custom of the foreman, when he saw an engine or car approaching, to warn the men under him to get off the track. The law is well settled that it is improper to show customs unless they prevailed under similar conditions. And in this case the conditions prevailing at the plant of the Sand Company where the work was being done were entirely dissimilar from the work carried on in the railroad yards of the company. (3) The court erred in allowing the respondent's witness August Beckemeyer to testify, over the objection of appellant, that when the section crew in question were working in the yards of the Pittsburgh Plate Glass Company, it was the custom of the foreman, when he saw an engine or car approaching, to warn the men under him to get off the track. The law is well settled that it is improper to show customs unless they prevailed under similar conditions. And in this case the conditions prevailing at the plant of the Sand Company where the work was being done were entirely dissimilar from the work carried on in the railroad yards of the company. (4) The court erred in allowing respondent himself to testify, over the objection of appellant, that when the section crew in question were working in the yards of the Pittsburgh Plate Glass Company, it was the custom of the foreman, when he saw an engine or car approaching, to warn the men under him to get off the track. The law is well settled that it is improper to show customs unless they prevailed under similar conditions. And in this case the conditions prevailing at the plant of the Sand Company where the work was being done were entirely dissimilar from the work carried on in the railroad yards of the company. (5) The court erred in giving Instruction No. 1 at the instance of respondent. (a) Because it requires a finding that respondent's foreman, Keevin, could have discovered that the cable was about to be moved, when there was no testimony upon which to base such a finding. Stone v. Hunt, 114 Mo. 66; State v. Hope. 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; State v. Brown, 155 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245. (b) Because it required a finding that it was the custom of the foreman to keep a lookout for and give plaintiff reasonable and timely warning, when there was no testimony of any such custom prevailing under conditions similar to those prevailing at the time in question. (c) Because the said instruction incorrectly states the law to be that the respondent, under the circumstances in question, had a right to rely upon the foreman's keeping a lookout for him. (d) Because said instruction does not require a finding that it was the duty of respondent's foreman to keep a lookout for and warn the men of approaching dangers, but merely a finding that he was authorized so to do. (6) The court erred in refusing to give Instruction B at the instance of appellant. Where a petition contains certain charges of negligence and the testimony does not sustain or tend to sustain them, it is the duty of the trial court, when requested by the defendant, to instruct the jury that there is no testimony to sustain such charges and that the plaintiff cannot recover on such charges. Chrismer v. Bell Telephone Co., 194 Mo. 189. (7) The court erred in refusing to give Instruction D at the instance of appellant. (8) The court erred in refusing to give Instruction E at the instance of appellant. Chrismer v. Bell Telephone Co., 194 Mo. 189. (9) The court erred in refusing to give Instruction F at the instance of appellant. (10) The court erred in refusing to give Instruction G at the instance of appellant. The allegations of the plaintiff's petition are taken to be true as against plaintiff for the purposes of the case. He cannot recover on a contrary theory. State v. Brooks, 99 Mo. 137; Chitty v. Railroad, 148 Mo. 64; Hensler v. Stix, 108 Mo. 238; Mueller v. La Belle, 109 Mo.App. 506; Adulff v. Columbia Pretzel Co., Cheltz v. Railroad, 148 Mo. 64; Yarnell v. Railroad, 113 Mo. 570; Waldner v. Railroad, 71 Mo. 514; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572; Price v. Railroad, 72 Mo. 414; Standard Milling Co. v. Transit Co., 122 Mo. 277; Hite v. Railroad, 130 Mo. 136; Mason v. Railroad, 75 Mo.App. 10.

Safford & Marsalek for respondent.

(1) The court rightfully refused to give the peremptory instruction offered by defendant Pittsburgh Plate Glass Company at the close of all the evidence. Jordan v. Transit Co., 202 Mo. 418; Gannon v. Gas Co., 145 Mo. 502, 511; Spaulding v. Railway Co., 129 Mo.App. 607; Grain Co. v. Railroad, 182 Mo.App. 339, 342; Morgan v Sunflower Zinc Co., 199 S.W. 590, 592. Under the testimony in this case, plaintiff is entitled to judgment against Pittsburgh Plate Glass Company. (1) Every fact favorable to plaintiff which the evidence tends to prove, though but in the slightest degree, must be taken as admitted by an instruction in the nature of a demurrer to the evidence, and every inference arising from such facts in plaintiff's favor should be drawn. Hall v. Coal & Coke Co., 260 Mo. 351, 365; Maginnis v. Railroad, 268 Mo. 667, 675; Bender v. Railway Co., 137 Mo. 240; Moore v. Railway Co., 73 Mo. 439; Field v. Railway Co., 46 Mo.App. 449; Wilkerson v. Railway Co., 26 Mo.App. 144; Thornsberry v. Ry. Co., Mo. , 178 S.W. 197, 200. (2) Keevin was in the employ of Pittsburgh Plate Glass Company, and was authorized to instruct plaintiff where, when and how to perform his duties to Pittsburg Plate Glass Company, and it was his custom to keep a lookout for approaching danger while in charge of the crew of Pittsburgh Plate Glass Company repairing tracks, and to warn the crew, of which plaintiff was a member, of approaching danger, and Keevin instructed plaintiff in repairing the tracks of Pittsburg Plate Glass Company to assume the position he occupied when he was injured, and did not countermand the instruction, although it was his duty to do so by warning, for he could by the exercise of ordinary care have discovered that the cable was about to move and injure Bequette, and that by reason thereof the premises where Bequette was working were not reasonably safe, and his duty to countermand his instruction by warning is a non-delegable duty, and for his negligence in failing to perform such non-delegable duty of the...